Revised August 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 00-10134

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHENARD TYVON WELLS; RODNEY W. WELLS,

Defendants-Appellants,

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No. 00-10266

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOLETTA DENISE SCOTT,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

______________________________________________

August 16, 2001

Before JONES, DeMOSS and BENAVIDES, Circuit Judges.2

BENAVIDES, Circuit Judge:

This direct criminal appeal involves three appellants who were

each convicted of one count of conspiracy to distribute cocaine base

and one count of distribution of cocaine base. The appellants raise

various arguments, including challenges to evidentiary rulings, jury

instructions, and sentencing error. Because we find the erroneous

admission of he arsay testimony against Loletta Scott was not harmless,

we VACATE her convictions and REMAND for further proceedings. With

respect to Rodney Wells, we find the submission of a deliberate

ignora nce instruction was harmless error, and AFFIRM his convictions.

Finally, we conclude that Shenard Wells has not esta blished a

presumption of prosecutorial vindictivene ss and thus AFFIRM his

sentence.

I. FACTUAL AND PROCEDURAL HISTORY

On March 24, 1999, a grand jury charged Shenard Tyvon Wells

(Shenard), his wife, Loletta Scott (Loletta), his brother, Rodney W.

Wells (Rodney), and several others with one count of conspiracy to

distribute cocaine base and one count of distribution of approximately

26.2 grams of cocaine base. Pursuant to a plea agreement, Shenard

pleaded guilty to the distribut ion count and the government dismissed

the count of conspiracy. Also pursuant to the agreement, Shenard

promised to provide complete information about his criminal activities

and the government agreed that, if he provided substantial assistance,

it would file a motion for downward departure pursuant to U.S.S.G. §

5K1.1.3

On July 19, 1999, the government moved to revoke the plea

agreement, alleging that Shenard had failed to fully disclose his

criminal conduct and had attempted to kill one government witness and

corruptly influence another. At the revocation hearing, the government

ultimately relied solely on Shenard’s failure to cooperate, and the

district court allowed the government to revoke the agreement.

On August 11, 1999, the grand jury returned a superseding

i ndictment again charging Shenard, Loletta, and Rodney with one count

of conspiracy to distribute cocaine base and one count of distribution

of cocaine base. Additionally, the grand jury charged Shenard with one

count of attempting to kill a person to prevent him from communicating

with law enforcement officers and one count of attempting to intimidate

a witness. Shenard persisted in his plea of guilty to the count

alleging distribution and pleaded not guilty to the three remaining

counts. Loletta and Rodney pleaded not guilty to the conspiracy and

distribution counts.

The government introduced the following evidence at trial. On June

15, 1998, William Block and Darren Lee, both confidential informants for

the Drug Enforcement Administration, were looking for a drug dealer

named Terrence Spencer in Terrell, Texas. Instead, they ran into

Shenard and Mark Perkins.

Lee arranged for Block to buy two ounces of crack cocaine from

Shenard. Block and Lee followed Shenard and Perkins to Shenard’s

apart ment, and Rodney met the men at the bottom of the stairway.

Loletta was at the apartment when the men arrived and opened the door1 Rodney testified that he had met Shenard at the apartment to

borrow money to purchase diapers for his infant son. Rodney claimed

that he initially did not know that Shenard was conducting a drug

transaction. He realized it after he had exited the apartment to borrow

the scales. According to Rodney, he did not want to be involved in the

transaction and did not actually go to the neighbor’s apartment. He

lied when he told Shenard that the neighbor was not home.

4 to allow them entry.

Shenard, Rodney, Block, Lee, and Perkins seated themselves in the

den and discussed the transaction. Loletta remained outside the den

during the entire transaction. At one point, Shenard called for his

wife to bring him the cocaine. However, she was unable to locate it in

the refrigerator, and Shenard retrieved it. After some concern was

expressed regarding the weight of the cocaine, Shenard asked his brother

to borrow scales from a neighbor. Rodney then left the apartment and

returned, stating that the neighbor was not home. 1

Shenard also instructed Loletta to bring him a plastic bag. She

complied by handing a bag to Rodney who then gave it to Shenard.

Shenard placed the crack cocai ne in the bag. After paying cash for the

cocaine, Block and Lee left the apartment with the cocaine. Shenard

handed Loletta the money, which she took to their bedroom.

All three appellants testified at trial. Each of them, including

Shenard, testified that Shenard sold cocaine base. Each of them

testified that neither Rodney nor Loletta were involved in the drug

business with Shenard.

The appellants do not challenge the sufficiency of the evidence to

support their convictions. Therefore, any remaining facts necessary to5

determine their appeals are set forth in our discussion of their claims.

The jury acquitted Shenard of the two obstruction of justice

counts, and we therefore do not recite the evidence introduced in

support of those charges. The jury found the appellants guilty as

charged on the remaining counts.

II. ANALYSIS

A. ADMISSION OF HEARSAY EVIDENCE OF DESTROYED LEDGERS

Loletta argues that the district court erred in overruling her

hearsay objections to the testimony of Joseph Antoine, a cooperating

witness. Antoine testified concerning his memory of the contents of

previously destroyed ledgers that purportedly contained information

regarding amounts of drugs he and his friend, Gerard Busby, sold to

Loletta. He also testified that he knew Loletta purchased drugs based

on representations Busby made to him. We review the district court’s

decision to allow admission of evidence for abuse of discretion. United

States v. Harrison, 178 F.3d 374, 379 (5th Cir. 1999).

Prior to the instant trial, Antoine, known as “Spider” on the

streets of Houston, pleaded guilty to a charge of conspiracy to

distribute cocaine and cocaine base in the Southern District of Texas

in exchange for the government’s dismissal of three other counts in the

indictment against him. During the instant trial, Antoine testified

that pursuant to a plea agreement he had promised to “cooperate fully

and give full statements.” He further testified that he had not been

pr omised anything by either the Houston or Dallas United States6

Attorney’s Office in exchange for his cooperation.

On direct examination, Antoine admitted that he had been involved

with drugs since 1992. In 1994 or 1995, Shenard would travel from

Terrell to Houston to purchase cocaine base directly from Antoine.

Antoine did not know “exactly how many times, but it was a lot of

times.” Sometime in 1995, Shenard stopped purchasing drugs from Antoine

because Shenard was sent to the penitentiary.

Antoine subsequently began using his friend Gerard Busby to make

drug deliveries for him. Antoine admitted that he had no personal

knowledge of Loletta purchasing drugs. Indeed, he admitted that he had

never met her and had never seen her face to face, but thought he had

seen the side of her face while she was sitting in a car. Antoine did

not identify Loletta in court.

Notwithstanding these admissions, he testified that he and Bubsy

kept “little ledgers with the sales on it, and [Loletta’s] name would

be on it, and [Busby] would speak about her.” Antoine asserted that,

through Busby, he sold cocaine base to Loletta over a period of six

months. Based on the ledgers, Antoine contended that Loletta “mov[ed]

more drugs than Shenard.”

On cross-examination, Antoine related that he kept a weekly ledger

and threw it away each week after he counted the money from the drug

sales. He admitted that he “didn’t keep a long time ledger, just a

weekly ledger.”

It is undisputed that Loletta’s counsel made hearsay objections to

Antoine’s testimony regarding the ledgers and to the statements Busby2 Additionally, at the conclusion of Antoine’s testimony, while

Loletta’s counsel was requesting tha t Antoine’s testimony be stricken

because Antoine had no personal knowledge of Loletta purchasing drugs,

the prosecutor interrupted, stating: “Objection to this. I think we

need to come to the bench.” The district court responded as follows:

“I don’t need you to come to the bench. I’ll overrule the objection.”

This is the extent of the argument allowed by the district court with

respect to the admissibility of Antoine’s hearsay testimony.

7 made to Antoine. 2 On appeal, the government argues that the district

court did not err in allowing the testimony. With respect to Antoine’s

testimony regarding the destroyed drug ledgers, the government contends

that evidence was admissible pursuant to the hearsay exception known as

the business records exception under Rule 803(6) of the Federal Rules

of Evidence. Whether evidence is admissible under Rule 803(6) is

“chiefly a matter of trustworthiness.” M ississippi River Grain

Elevator, Inc. v. Bartlett & Co., 659 F.2d 1314, 1319 (5th C ir. 1981).

Rule 803(6) provides as follows:

(6) Records of Regularly Conducted

Activity.– A memorandum, report, record, or data

compilation, in any form, of acts, events,

conditions, opinions, or diagnoses, made at or

near the time by, or from information transmitted

by, a person with knowledge, if kept in the course

of a regularly conducted business activity, and if

it was the regular practice of that bu siness

activity to make the memorandum, report, record or

data compilation, all as shown by the testimony of

the custodian or other qualified witness, or by

certification that complies with Rule 902(11),

Rule 902(12), or a statute permitting

certification, unless the source of information or

the method or circumstances of preparation

indicate lack of trustworthiness. The term

“business” as used in this paragraph includes

business, institution, association, profession,

occupation, and calling of every kind, whether or

not conducted for profit.3 We note that it is not clear to us that destroying the ledgers

at the end of each week constituted keeping them in the course of a

regularly conducted business activity. See United States v. Holladay,

566 F.2d 1018, 1020 (5th Cir. 1978) (explaining that notebooks were

admissible under Rule 803(6) upon showing that they were part of a

bookkeeping system “continuously maintained” for purpose of accounting

for receipts and disbursements of defendant’s business); United States

v. Jones, 554 F.2d 251, 252 (5th Cir. 1977) (finding that a proper

foundation was laid under Rule 803(6) because the witness was “able to

identify the record as authentic and specify that it was made and

preserved in the regular course of business”). However, our conclusion

that Antoine’s testimony was inad missible does not rest on this basis.

8 Here, the district court allowed the government to elicit testimony

from Antoine without requiring it to es tablish the above foundational

requirements. Antoine testified regarding the volume of drugs Loletta

purportedly “moved ” in comparison to her husband without first

testifying that the ledgers had been “made at or near the time by, or

from information transmitted by, a person with knowledge.

. . . “ Nor

did Antoine first testify that either the ledgers were “kept in the

course of a regularly conducted business activity, or [that] it was the

regular practice of [his] business activity to make the [ledgers.]”

On cross-examination, Antoine explained that he kept a ledger every

week of “an inventory of [his] supplies so [his] money [would] be right

and [his] drugs [would] be right.” Also, each week, he threw away the

ledger. This testimony could arguably fulfill the foundational

requirements of Rule 803(6). 3 Assuming for purposes of this appeal that

if the government had produced the original ledgers they would have

qualified as business records under Rule 803(6), we now turn to the

government’s argument that Antoine’s testimony with respect to the4 In pertinent part, Rule 1004 provides that “[t]he original is

not required, and other evidence of the contents of a writing,

recording, or photograph is admissible if–

. . . [a]ll originals are

lost or have been destroyed, unless the proponent lost or destroyed them

in bad faith. . . .”

9 contents of the ledgers was admissible.

The government argues that Antoine’s testimony regarding the

contents of the ledger was admissible as secondary evidence (under Rule

1004 4 ) of the destroy ed business records. In support of its argument,

the government cites a First Circuit opinion in which a copy of a

business record that had been destroyed was held to be admissible. In

United States v. Lizotte, 856 F.2d 341 (1st Cir. 1988), a lawyer was

convicted of conspiring to impede the collection of taxes by assisting

a client in hiding drug proceeds. The First Circuit explicitly noted

that, in addition to a drug business, the client had a legitimate

wholesale business in which he “was accustomed to keeping records.” Id.

at 344. This client also kept records of his drug sales. At the end

of eac h day in 1994, the client would mark his calendar with the amount

of drugs that he had sold that day along with a code to identify the

buyer. At the end of the year, he copied the weekly sales totals from

1984 to the 1985 calendar’s corresponding weeks to allow him to make

comparisons between his weekly sales in 1984 and 1985. After

transferring the subtotals to the 1985 calendar, the client destroyed

the 1984 calendar. The First Circuit held that the 1984 entries

constituted a business record under Rule 803(6) and held that the

transfer of the record of those entries to the new calendar did not5 Although the First Circuit used the word “credibility,” as

explain ed below, this Court has looked to the “trustworthiness” of the

evidence in making its determination of admissibility.

6 The First Circuit did not expressly state the basis upon which

the 1985 calendar could be admitted. It is not clear if the basis was

secondary evidence or whether the court believed a copy of a business

record constituted a business record under Rule 803(6).

7 S ee Falcon v. General Telephone Co. of the Southwest, 626 F.2d

369, 383 (5th Cir. 1980) (noting that the business records exception of

Rule 803(6) is very similar to 28 U.S.C. § 1732(a)) vacated on other

grounds, 450 U.S. 1036, 101 S.Ct. 1752 (1981).

10 “destroy its credibility.” 5 I d. A s such, the First Circuit concluded

that the original 1984 calendar was admissible under Rule 803(6) and

therefore apparently held that the 1985 calendar with the copied entries

was properly admitted as secondary evidence. 6

The government also relies on U nited States v. Prevatt, 526 F.2d

400 (5th Cir. 1976). In that case, the district court allowed the

admission of a single sheet of paper upon which an employee had written

yearly totals of collection amounts transferred from a notebook. I d.

at 403. At the time of trial, the original records had been destroyed.

We concluded that the notebook was admissible under the Business Records

Act, 28 U.S.C. § 1732(a). 7 The notebook was lost at the time of trial,

and thus the copy was admissible. Id.

While these two cases indicate that documents constituting

secondary evidence of destroyed business records may be admissible, they

do not stand for the proposition that oral testimony regarding the

contents of destroyed business records is admissible. It is undisputed

that the government has the burden of proving that the evidence was11

admissible as an exception to the rule against hearsay. The government

has not cited a case in which testimony was allowed to suffice as

secondary evidence of a business record under Rule 803(6).

The only case we discovered involved the government’s use of oral

testimony when the business records were available but the government

did not introduce them. We found this to be reversible error. In

United States v. Marshall, 762 F.2d 419 (5th Cir. 1985), a defendant was

convicted of theft of property of the United States in ex cess of $100,

i.e., a lawn mower. The allegedly stolen lawn mower was not introduced

into evidence. To prove that a lawn mower was missing from the Army and

Air Force Exchange Service, the government called an investigator, Terri

Stanlin. Stanlin testified, over an hearsay objection, that based on

her review of the store’s records, three lawn mowers were unaccounted

for during this time period. On appeal, the government argued that,

because it had allowed defense counsel access to the store’s records

prior to trial, this Court should review the evidentiary ruling as if

the records had been introduced into evidence under Rule 803(6). I d.

at 426. We rejected this argument, explaining that “instead of the

record itself the district court permitted introduction of Ms. Stanlin’s

‘fact’ testimony that her generalized review of the records showed that

three lawn mowers were missing from the store.” Id. We determined that

such evidence was clearly inadmissible and constituted reversible error.

In sum, we held that:

reversible error occurred because, over defense

objection, the trial court permitted a non-expert12 to give prejudicial hearsay testimony as to the

contents of documents that were not themselves

introduced into evidence, which docum ents,

moreover, could not have been introduced without

prior authentication, including a query into their

trustworthiness for the purpose for which

introduced.

Although M arshall is not controlling becau se

, unlike the instant

case, the original records were available

, we believe the basic holding

in that c ase tends to indicate that Antoine’s testimony with respect to

the contents of the ledgers was hearsay. Again, the government had the

burden of proving that the ev idence was admissible, and we do not find

the authority it cites persuasive.

While recognizing that a district court is given great latitude in

determining admissibility under this rule, we simply cannot conclude

that the oral testimony of Antoine, a cooperating witness, with respect

to his memories of notations of drug sales apparently drafted by someone

else several years earlier and destroyed soon thereafter had sufficient

indicia of trustworthiness. If we allowed this testimony, we would, in

effect, be allowing an end run around the rule against hearsay and the

requirements of the business records exception. This we are unwilling

to do.

Indeed, the rationale underlying this exception to the rule against

hearsay is that the inherent reliability of business records is

"supplied by systematic checking, by regularity and continuity which

produce habits of precision, by actual experience of business in relying

up on them, or by a duty to make an accurate record as part of a8 U nited States v. Foster, 711 F.2d 871, 882 (9th Cir. 1983)

(allowing the drug ledgers after expl aining that “[a] record is

considered as having been kept in the regular course of business when

it is made pursuant to established procedures for the routine and timely

making and preserving of business records, and is relied upon by the

business in th e performance of its functions.”); S ee also Lizotte, 856

F.2d at 344 (finding that the transfer of the drug ledger sales to

another calendar did not make the document inadmissible under Rule

803(6)).

13 continuing job or occupation." Fed.R.Evid. 803(6), Notes of Advisory

Committee on Proposed Rules. We have expressly recognized that the

“‘primary emphasis of rule 803(6) is on the reliability or

trustworthiness of the records sought to be introduced.’” United States

v. Duncan

, 919 F.2d 981, 986 (5th Cir.1990)(quoting United States v.

Veytia-Bravo , 603 F.2d 1187, 1189 (5th Cir.1979)).

We certainly do not decide that, as a general rule, drug ledgers

are inadmissible under Rule 803(6). We recognize, of course, that the

F irst and Nint h Circuits have allowed the admission of drug ledgers (or

copies thereof) under Rule 803(6). 8 Here, we hold only that, under the

circumstances of this case, the oral testimony regarding the destroyed

ledgers falls outside the hearsay exception under Rule 803(6).

Therefore, the district court clearly abused its discretion in admitting

the hearsay testimony of Antoine with respect to the drug “ledgers.”

See Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 2047 (1996)

(a district court necessarily abuses its discretion when it makes an

error of law). In view of our conclusion that the district court abused

its discretion in allowing the testimony of the destroyed “ledgers,” we

must determine whether such error was harmless. In making this9 Although the government shoulders the burden of proving

harmless error, United States v. Munoz, 150 F.3d 401, 412 (5th Cir.

1998), it does not argue (even in the alternative) that the admission

of the ledgers was harmless error. The government does argue that the

admission of Antoine’s testimony with respect to Busby’s statements was

harmless error.

14 determination, we view the error in relation to the entire trial.

United States v. Gadison

, 8 F.3d 186, 192 (5th Cir.1993). We must

determine whether the inadmis sible evidence contributed to the jury’s

verdict and reversal is warranted “only if the evidence had a

‘substantial impact’ on the verdict.” I d

. (cita tion omitted). 9

The remaining evidence in support of Loletta’s convictions for

conspiring to distribute crack cocaine and distribution of crack cocaine

certainly is not overwhelming. With respect to the drug transaction

that occurred on June 15, 1998, Block, a paid government informant,

testified that although Loletta never stepped into the room in which the

drug transaction was taking place, he thought she was observing the

transaction. Block overheard Loletta ask h er husband if Block was

going to buy all the crack cocaine. Block also testified that, at

her husband’s request, she retrieved a plastic bag and gave it Rodney,

who in turn gave it to her husband. However, on cross-examination,

B lock admitted that, although he had been “wired” with recording

equipment and a transcript had been made of the audiotape, the

transcript did not contain Shenard’s request of Loletta to bring a bag.

With some prompting from the prosecutor, Mark Perkins, a10 The charges against Loletta involved only cocaine base.

However, Ana nias Nickerson, who was charged in the original indictment

and pleaded guilty, testified that on one occasion, pursuant to

Shenard’s instructions, Loletta handed him a “blunt” (apparently a cigar

filled with marijuana) and he gave her money that she threw on the seat

of the car. Mark Perkins, who also pleaded guilty after being charged

in the original indictment, testified that on one occasion, Shenard told

him that he was saving some marijuana for Loletta so that she could take

it to “the old girl downstairs” or sell it.

15 cooperating witness, testified that Shenard asked Loletta to get the

cocaine from the refrigerator. Perkins observed Loletta ostensibly

looking for the cocaine, but she could not find it. Ultimately, Shenard

had to retrieve it. P erkins asserted that Shenard gave the s ale

proceeds to Loletta, who took the money to their bedroom. Clearly,

this is sufficient evidence to support Loletta’s convictions–-but

that is not the question. The question is whether Antoine’s testimony

(that during a six-month period in which her husband was in jail,

Loletta sold more drugs than her husband) had a substantial impact on

the verdict.

There are several witnesses who testified that Loletta was present

or observed her husband sell drugs. However, that evidence was

undisputed in that Loletta admitted she knew her husband was a drug

dealer.

Additionally, one government witness’s testimony indicated that

Loletta herself sold crack cocaine on one occasion. 10 Darlene Skinner

Jones, who admitted that she had smoked crack cocaine for nearly twenty

y ears, testified that although she did not observe the actual

transaction, she saw a fell ow crack user, Sherry Wilson, who had forty16

dollars, talk to Loletta and return with crack cocaine. Curiously, on

cross-examination, when asked whether Loletta was a drug dealer, Jones

responded “Not that I know of.” In rebuttal, defense counsel called

Sherry Wilson. In direct contradiction of Jones’s testimony, Wilson

testified that she had never purchased drugs from Loletta. Moreover,

another government witness, Victor Robinson, who had lived in Terrell

his entire life and had sold crack cocaine with Shenard, testified that

he had no knowledge of Loletta selling any drugs.

Loletta’s defense essentially was that she was a good wife. She

admitted that she knew that her husband was a drug dealer. She

introduced evidence to show that she had worked for a factory for the

better part of ten years. She introduced actual business records

proving that she worked full time and even overtime at the factory

during the time frame alleged in the indictment. She called witnesses

to testify that she had indicated to them that she wanted her husband

to quit selling drugs and hold a legitimate job.

We have read the entire record and it is apparent that, prior to

the introduction of Antoine’s te stimony, the jury could have believed

that the government had not proven beyond a reasonable doubt that

Loletta had the intent to distribute or to conspire to distribute

cocaine.

The government apparently perceived that the evidence was not

overwhelming and, in rebuttal, called Antoine. His testimony

obl iterated her defense. He accused her of being a bigger dope pusher11 Because we vacate Loletta’s convictions on this basis, we need

not reach the other arguments she raises with respect to Antoine’s

testimony.

12 The deliberate ignorance charge read as follows:

You may find that a defendant had

knowle dge of a fact if you find that the

defendant deliberately closed his or her eyes

to what would otherwise have bee n obvious to

him or her. While knowledge on the part of

the defendant cannot be established merely by

demonstrating that the defendan t was

negligent, careless, or foolish, knowledge can

be inferred if the defendant deliberately

blinded himself or herself to the existence of

a fact.

17 than her husband. He was allowed to do so even though he admitted that

he did not have any personal knowle dge of her purported drug sales. He

bolstered his testimony by relying on purported business records of his

drug sales. The only person who had personal knowledge of the contents

of the “ledgers” was Gerard Busby, and the government failed to call

him.

Because Antoine’s testimony was by far the most damning testimony

in terms of Loletta’s actual involvement in distributing drugs, we

believe that the evidence contributed to the jury’s verdict and that it

“had a ‘substantial impact’ on the verdict.” G adison

, 8 F.3d at 192.

Accordingly, under these circumstances, we simply cannot say that this

error was harmless. Therefore, we VACATE Loletta Wells’ convictions and

REMAND for further proceedings. 11

B. DELIBERATE IGNORANCE INSTRUCTION

Rodney Wells asserts that the submission of a deliberate

ignorance instruction to the jury constitutes reversible error. 1 218

Rodney testified in his own defense at trial. He related that, on

June 15, 1998, he had called his brother Shenard to see if he could

borrow money to purchase diapers for his infant son. After calling

h is brother, Rodney met Shenard at Shenard’s apartment to bor row

the money. Although he initially did not realize that his brother

was conducting a drug transaction, while in route to borrow scales

from the neighbor at Shenard’s request, Rodney surmised that a drug

transaction was taking place. Once he realized the purpose of his

errand for Shenard, he decided to report that the neighbor was not

home. In short, his defense was that he never knowingly

participated or aided and abetted the distribution of cocaine base.

"A district court has broad discretion in framing the

instructions to the jury and this Court will not reverse unless the

instructions taken as a whole do not correctly reflect the issues

and law." U

ni ted States v. McKinney , 53 F.3d 664, 676 (5th Cir.

1995) (citation and internal quotation omitted). "The purpose of

the deliberate ignorance instruction is to inform the jury that it

may consider ev idence of the defendant's charade of ignorance as

circumstantial proof of guilty knowledge." I d

. (citation and

internal quotation omitted). "It should only be given when a

defendant claims a lack of guilty knowledge and the proof at trial

supports an inference of deliberate indifference." I d

. at 676-77.

"The instruction is proper where the evidence shows (1) subjective13 Rodney also complains that the prosecutor’s closing

argument compounded the error. Rodney asserts that the prosecutor

argued that it did not matter whether Rodney attempted to obtain

the scales. We reject Rodney’s interpretation of the prosecutor’s

argument. Instead, we understand the prosecutor’s argument to be

that it did not matter whether Rodney was actually successful in

his attempt to obtain the scales, only that he attempted to obtain

them. Moreover, contrary to Rodney’s contentions otherwise, we

believe the court’s c harge, which included the following

instruction on “mere presence,” would have cured any confusion.

The “mere presence” instruction provided:

Mere presence at the scen e of an event, even with

knowledge that a crime is being committed, or the

mere fact that certain persons may have associated

with ea ch other, and may have assembled together

and discussed common aims and interests, does not

necessarily establish proof of the existence of a

conspiracy. Also, a person who has no knowledge

of a conspiracy, but who happens to act in a way

19 awareness of a high probability of the existence of illegal

conduct, and (2) purposeful contrivance t o avoid learning of the

illegal conduct." United States v. Threadgill , 172 F.3d 357, 368

(5th Cir. 1999).

Rodney concedes that if his defense had been that he was

merely present at a drug deal and did not know that his brother

requested scales in o rder to weigh the cocaine, a deliberate

ignorance instruction would ha ve been proper. He contends,

however, that his defense was that he never actually attempted to

obtain the scales from t he neighbor. He argues that because he

testified that he knew both that a drug deal was taking place and

that the scales were to b e used for measuring drugs there was no

basis for the submission of the instruction on deliberate

ignorance. 13which advances some purpose of a conspiracy, does

not thereby become a conspirator. . . .

Of course, mere presence at the scene of a

crime and knowledge that a crime is being

committed are not sufficient to establish that the

defendant ei ther directed or aided and abetted a

crime unless you find beyond a reasonable doubt

t hat the defendant was a participant and n o t

merely a knowing spectator.

20 Rodney’s contentions are partially correct. He testified that

at the time his brother asked him to retr ieve the scales, he did

not know there was a drug transaction taking place. In any event,

he did testify that, after he left the apartment and was walking to

the neighbor’s apartment, he realized that his brother was

conducting a drug transaction. Assuming that it was error for the

district court to sub mit the instruction, Rodney’s admission of

actual knowledge proves fatal to his claim. “We have consistently

held that an ‘error in giving the deliberate ignorance instruction

is

... harmle ss where there is substantial evidence of actual

knowledge.’" Threadgill, 172 F.3d at 369 (quoting United States v.

Cartwright

, 6 F.3d 294, 301 (5th Cir. 1993)). Accordingly, we

conclude that any error in submitting the charge was harmless.

C. DUE PROCESS VIOLATION

1. District Court’s Refusal to Rule

Shena rd claims that, in response to exercising his right to

t rial, the government violated his due process rights by

manipulating the sentencing guidelines. He first argues that the

district court refused to rule on this objection based on a14 Although the objection was not precisely made, we believe that

it was sufficiently rais ed in the district court. We note in its brief

the government has expressly stated that Shenard’s “objection below

claimed prosecutorial vindictiveness.”

21 technical fa ilure to object to a certain paragraph in the

presentence report.

Our careful examination of the record l eads us to conclude

that the district court did not refuse to rule on his claim of

prosecutorial vindictiveness at sentencing based on a t echnical

failure to object to a certain paragraph in the presentence report.

It appears to us there are two possible interpretations of the

district court’s response to Rodney’s objection. On one hand, it

could be that the district court simply did not perceive that

Shenard was raising the due process claim of prosecutorial

vindictiveness. 14 Instead, the court understood that Shenard was

objecting to the inclusion of the additional amounts of drugs but

in doing so failed to articulate any challenge to the “rationale

for calculating the amount of crack cocaine [attributable] to

[him].”

On the other hand, the government believes that the district court

ruled that Shenard could not prevail on his claim of prosecutorial

vindictiveness because he had not undermined the factual basis for drug

calculation. Under either scenario, it is undisputed that the district

court never expressly address ed Shenard’s claim of prosecutorial

vindictiveness, and the government agrees that the district court’s

reasoning was not dispositive of this claim. Therefore, regardless of22

the district’s interpretation of Shenard’s claim of prosecutorial

vindictiveness, we now address it on the merits.

2. Prosecutorial Vindictiveness

As stated, Shenard asserts that the government violated his due

process rights by vindictively increasing the drug quantity after he

exercised his right to trial. This Court, sitting en banc, has made

clear that in deciding claims of prosecutorial or judicial

vindictiveness, we should neither attempt to classify the decisions,

e.g., pre- or post-trial, nor measure the case against “fixed gauges.”

United States v. Krezdorn, 718 F.2d 1360, 1364 (5th Cir. 1983) (en

banc). Instead, we should apply the following test. Id. at 1365.

If the defendant challenges as vindictive a

prosecutorial decision to increase the number or

severity of charges following a successful appeal,

the court must examine the prosecutor’s actions in

the context of the entire proceedings. If any

objective event or combination of events in those

proceedings should indicate to a reasonable minded

defendant that the prosecutor’s decision to

incre ase the severity of charges was motivated by

some purpose other than a vindictive desire to

deter or punish appeals, no presumption of

vindictiveness is created.

In the case at bar, we must therefore determine whether there is

an objective event that should have indicated that the government’s

decision to hold Shenard responsible for all the drugs attributable to

him was motivated by some purpose other than a vindictive desire to

punish him for exercising his right to trial. Although K rezdorn

involved prosecutorial vindictiveness after a successful appeal, we have

applied the above-quoted test in a case alleging vindic tiveness after15 516 U.S. 137, 116 S.Ct. 501 (1995).

23 the defendant successfully repudiated a plea agreement. S ee United

States v. Moulder, 141 F.3d 568 (5th Cir. 1998). In M oulder, after

pleading guilty pursuant to a p lea agreement, the defendants had

successfully obtained the district court’s dismissal o f their

convictions based on a subsequent Supreme Court decision. Id. at

572. In response, the government reinstated charges that

previously had been dismissed pursuant to the plea agreement. We

concluded that “it should be clear to a reasonable minded defendant

that the dismissal of the

. . . conviction in the light of Bailey 15

was an event that would certainly motivate the government to

reinstate the dismissed drug charge.” Id. (footnote added).

Initially, the government apparently held Shenard accountable

for less drugs as a dispensation for a guilty plea. Subsequently,

the district court granted the government’s motion to revoke the

plea agreement with Shenard, finding “that the undisputed evidence

presented by the government supports that contention that Mr.

[Shenard] Wel ls has breached his agreement by failing to

cooperate.” It seems that a reasonable defendant would understand

that his breach of the plea agreement would motivate the government

to revoke their decision to hold Shenard accountable for the lesser

amount of drugs.

The prosecutor’s decision to hold Shenard accountable for the

greater quantity of drugs after he breached the plea agreement is16 The government’s decision was also motivated by the

government’s belief that Shenard had obstructed justice. Although the

jury acquitted Shenard of those charges, the Supreme Court has made

clear that acquittal is not a barrier to consideration of the underlying

conduct at sentencing so long as that conduct was proven by a

preponderance of the evidence. S ee United States v. Watts, 519 U.S.

148, 117 S.Ct. 633 (1997). C f. United States v. Stokes, 124 F.3d 39,

45 (1st Cir. 1997) (explaining that “prosecutors are not required to

function as bloodless automatons: they may (indeed, they should) make

judgments about dangerousness, set priorities, and give heightened

attention to cases which inspire a sense of outrage”).

24 comparable to the prosecutor’s decision in United States v. MolinaIguado, 894 F.2d 1452 (5th Cir. 1990). In Molina, the government

arrested a defendant on felony and misdemeanor charges, then

dropped the felony counts when she signed a plea agreement. At a

hearing, however, the defendant refused to consent to the

jurisdiction of a magistrate and asserted her right to proceed

before a district judge. The government successfully moved to

withdraw the plea agreement a nd reinstated the felony charges.

This Court held that the prosecutor’s actions did not create a

presumption of vindictiveness. Id. at 1455.

Molina-Iguado suggests that a defendant should realize

breaching a plea agreement is an event that could cause the

prosecutor to withdraw leniency with respect to the sentencing

recommendation previously given. The facts of this case simply do

not indicate that the government was punishing Shenard for going to

trial. Here, the government moved to have the plea agreement

revoked based on Shenard’s failure to cooperate. 16 Because a

presumption is inappropriate and Shenard has presented no evidence25

of actual vindictiveness, we must reject Shenard’s vindictiveness

claim.

D. OBSTRUCTION OF JUSTICE

Shenard finally challenges his obstruction of justice

enhancement, arguing that the district court relied on a finding

that it did not actually make at his plea agreement revocation

hearing. He concedes that this enhancement does not affect his

sentencing range and any error was harm less unless this Court

reverses on his vindictiveness claim. Because we do not find his

claim of prosecutorial vindictiveness meritorious, we agr ee that

any error was harmless.

For the above reasons, we VACATE Loletta Scott’s convictions and

REMAND for further proceedings. We AFFIRM the convictions of Rodney

Wells. Finally, we AFFIRM Shenard Wells’ sentence.